HECTOR A. SOLA AND SHARON IN THE COURT OF COMMON PLEAS
SOLA, FOR THE 26TH JUDICIAL
DISTRICT, MONTOUR COUNTY
Plaintiffs CIVIL ACTION - LAW
STAN H. CHAO, M.D., CASE NO: 122 OF 2000
R. MATTHEW PATCH, ESQUIRE, Attorney for Plaintiffs
DONNA L. RAE, ESQUIRE, Attorney for Defendant
May 25, 2000. James, J.
Plaintiffs filed a complaint at law alleging medical
negligence on the part of defendant. Defendant filed two
preliminary objections. The first objection was in the form of
a “Demurrer/Motion to Strike All Claims for Recklessness.”
Plaintiff stipulated to strike the allegations of recklessness
from the complaint.
The second preliminary objection was a “Motion to
Strike Complaint/Alternative Motion for More Specific Pleading”
to paragraph 10(A) which alleged the following “act” on the
part of defendant: “10(A) failing to perform the excision of
the pilonidal cyst in accordance with medically accepted
standards for general surgeons….” Defendant suggests that this
allegation of negligence does not comply with the requirement
of Pa.R.C.P. 1019(a) that “the material facts on which a cause
of action or defense is based shall be stated in a concise and
summary form.” Defendant also contends that the general, non-
specific allegation of paragraph 10(A) leaves defendant
“powerless to prevent Plaintiff from obtaining leave to amend
the Complaint to allege new and different theories of
negligence after the running of the statute of limitations”
under Connor v. Allegheny General Hospital, 501 Pa. 306, 461
A.2d 600 (1983). We agree.
Pa.R.C.P. 1019(a) requires that the complaint state
“material facts” to support a cause of action. “A cause of
action in negligence has been defined as the negligent act or
acts which occasioned the injury for which relief is sought.”
Reynolds V. Thomas Jefferson Hospital, 450 Pa.Super. 327, 338,
676 A.2d 1205, 1210 (1996), citing Cox V. Wilkes-Barre Railway
Corporation, 334 Pa. 568,570, 6 A.2d 538, 539 (1939).
In Connor, supra, the Pennsylvania Supreme Court
found that general allegations of negligence could be amplified
by later amendments to the complaint. However, in order to be
more specifically apprised of the act or acts of negligence (as
required by Pa.R.C.P. 1019(a)), a party “could have filed a
preliminary objection in the nature of a request for a more
specific pleading or it could have moved to strike that portion
of (appellant’s) complaint.” Connor at 501 Pa. page 311, 461
A.2d at page 602.
As a result of Connor, defendants are properly
concerned about unidentified allegations of negligence arising
late in the litigation process flowing out of a general
allegation of negligence raised early in the process. Some
common pleas courts have been rightly attuned to plaintiffs who
have less knowledge than the defendant medical providers about
the care and/or treatment provided. While weighing the
“practical considerations involved with medical malpractice
actions,” one court gave the plaintiff a “reasonable amount of
time to conduct discovery”, and then allowed plaintiffs to
amend the general allegations in their complaint. Johnson v.
Patel, 19 D&C 4th 305 (Lack. Cty. 1993).
A common pleas court has upheld allegations of
negligence that were “not very specific,” and suggested the
“court adopt a rule allowing courts to grant plaintiffs a
period of time for discovery prior to the filing of a
complaint” to avoid the Connor conundrum. See Rogers v.
Soldiers and Sailors Memorial Hospital, 16 D&C 573 (Tioga Cty.
There are methods by which a plaintiff could be
protected from the trap of after-discovered evidence of a new
cause of action. First, filing the claim at a date much
earlier than the date of the statute of limitation would allow
more time for discovery and, if necessary, amendments to the
pleadings. Second, a thorough investigation and analysis of
the case prior to filing could eliminate overlooked causes of
action. Third, plaintiffs could file a summons and engage in
pre-trial discovery, if appropriate. See Potts v. Consolidated
Rail Corp., 37 D&C 4th 196 (Allegheny Cty. 1998).
Finally, this court can envision situations where a
general allegation of negligence in a complaint could be left
open (under limited circumstances) for a reasonable amount of
time while discovery proceeds. For example, under a separate
petition, a party could ask for a reasonable time to conduct
discovery before amending the general allegations of negligence
in a complaint where knowledge of material facts is in the
exclusive control of an adverse or hostile party. However,
there is no such petition before the court, nor does this court
encourage the use of such petitions, except where absolutely
necessary to prepare a proper complaint.
The issue before this court is whether the allegation
of negligence in paragraph 10(A) conforms with Pa.R.C.P.
1019(a). The Pennsylvania appellate courts have said that
“while it is not necessary that the complaint identify the
specific legal theory of the underlying claim, it must apprise
the defendant of the claim being asserted and summarize the
essential facts to support the claim.” Estate of Edith May
Swift et al. v. Northeastern Hospital of Philadelphia, 456
Pa.Super. 330337, 690 A.2d 719,723 (1997).
In a common pleas case similar to ours, the Somerset
common pleas court struck paragraphs containing general
allegations of negligence. The court acknowledged that the
complaint must be read as a whole and that each individual
averment at issue must be read in connection with all other
parts and averments of the complaint. However, “a physician
charged with negligence and unskillfulness in the practice of
his profession is entitled to be advised of the specific acts
of commission or omission which constitutes the negligence and
unskillfulness complained of, so that plaintiff’s proof may be
confined to such acts, and so that he may reasonably prepare
for his defense.” Boyd v. Somerset Hospital, 24 D&C 4th 564
(Somerset Cty. 1993), citing Gray v. Oech, 49 D&C 2d 458
After considering the allegation of paragraph 10(A)
by itself and in the context of the entire complaint, it is
clear that paragraph 10(A) is simply a general allegation of
negligence without reference to sufficient material facts.
There are no acts of commission or omission specified.
Defendant is entitled to be informed of the specific nature of
the acts alleged so that he may prepare and present a defense.
This paragraph must be stricken, with leave to amend the
complaint to include specific acts. The court will provide
plaintiff with additional time to review the matter, conduct
further investigation, and to amend the complaint accordingly.
HECTOR A. SOLA AND SHARON SOLA, IN THE COURT OF COMMON
PLEAS FOR THE 26TH
Plaintiffs MONTOUR COUNTY BRANCH,
CIVIL ACTION - LAW
STAN H. CHAO, M.D., CASE NO: 122 of 2000
AND NOW, this 25th day of May, 2000, it is ORDERED AND
DECREED as follows:
1. By agreement and stipulation of the parties,
defendant’s first preliminary objection in the nature
of a Demurrer/Motion to Strike All Claims for
Recklessness is granted. All claims regarding
“recklessness” are hereby stricken.
2. Defendant’s second preliminary objection in the form of
a Motion for More Specific Pleading is granted in
regard to Paragraph 10(A). Paragraph 10(A) is
stricken, with leave to amend the complaint with more
3. Plaintiff shall file an amended complaint in accordance
with the Opinion and this Order within sixty days of
BY THE COURT
HONORABLE THOMAS A. JAMES, JR., J.